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COMMENTARY ON HANDLEY CASENICOLE MAE HANDLEY v. NORM THOMS Legal Note: Legal Analysis - Ski ActUnder the Ski Act, skiers have the duty to maintain a lookout so as to avoid collisions, to ski in control, and to refrain from acting in a manner which may cause or contribute to injury of the skier or others. C.R.S. 33-44-109(1), (2) & (5). The "uphill skier yields to the downhill skier" pursuant to the statutory provision that "the primary duty is on the person skiing downhill to avoid collision with any person below him." C.R.S. 33-44-109(2). The rules all have a common purpose, to avoid collisions between skiers, and to enforce the common sense proposition that the uphill skier has the better opportunity to see and avoid skiers below. This is especially true in high traffic areas where each skier needs to be cautious of the ones below, and needs to rely on the skier behind him or her to avoid. In 1990, amendments to the Ski Act abolished the defense that the risk of being hit by an unobservant skier is a risk inherent in the sport. C.R.S. 33-44-109(1) as amended provides: "the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another." 33-44-109(1) C.R.S. As Amended by Laws 1990, S.B. 90-80, 6, effective 7/1/90. The duties established under the Ski Act are enforceable in civil actions for negligence pursuant to C.R.S. 33-44-104(1) which provides that the breach of an enumerated duty shall, to the extent that such breach causes injury, constitute negligence. Skiers are, therefore, liable in tort for the damages caused to others by a violation of any duties set out in the Ski Act, C.R.S. 33-44-104(1). See, Wong v. Sharp, 734 F. Supp. 943 (D. Colo. 1990); Rimkus v. Northwest Ski Corp., 706 F.2d 1060 (10th Cir. 1983); Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo. 1985). Skiing is not a contact sport. The participant does not assume the risk of the negligence of another skier. Novak v. Virene, 586 N.E. 2d 578, 580 (Ill. App. 1991). No claim was advanced at any time, against the ski area operator. Legal Analysis - Exemplary ClaimThe purpose of punitive damages is punishment for wrongful conduct. The amount awarded should be adequate to call defendant's attention to that wrongful conduct. Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F.Supp. 1219, 189 U.S.P.Q. 17, remanded 561 F.2d 1365, 195 U.S.P.Q. 417, certiorari dismissed 98 S.Ct. 905, 434 U.S. 1052, 54 L.Ed.2d 805 (1976). The statute provides: "As used in this section, 'willful and wanton conduct' means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff." C.R.S. 13-21-102(1)(b). This definition has been interpreted to include conduct that "creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences." Messler v. Phillips, 867 P.2d 128 (Colo.App. 1993). We believed that we could show, beyond a reasonable doubt, that the act causing the injury was done with an evil intent and with the purpose of injuring the plaintiff, or with such a wanton and reckless disregard of the plaintiff's rights as to demonstrate a wrongful motive. Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo.App. 1993). RETURN TO HANDLEY CASE REPORT |
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